Marital vs. Non-Marital Property in Divorce

The marriage of two people joins them together in love and in life. It’s a time when couples merge their families, their routines and their property, intertwining their existences. In this article we explore both martial and non-marital property concerning divorce and touch on the factors for marital property distribution in Illinois.

In the legal sense, the joining of two people in the act of marriage creates a “marital estate,” a presumed agreement that almost all property gained by either person from that moment forward is mutually owned by both spouses.

However, not all assets that come into a person’s possession after getting married are considered marital assets. During divorce, couples are faced with the task of understanding why some assets are characterized as marital, why some are non-marital, and why certain assets can be characterized as both marital and non-marital in nature.

Definition of marital property

During the course of divorce proceedings, the separating spouses must reconcile the division of their marital property. Each party is awarded an item of property or a share of the financial value of property, such as a house or car.

Property and assets acquired during a marriage — with some exceptions — are considered marital property. That means from the moment the two people legally became married, it is assumed that the finances and property they accumulate are equally owned by both parties.

Marital property can include anything from:

Homes

Vehicles

Bank accounts

Bonds

Stocks

Other investments

Vacation properties

Furniture

Artwork

Valuable collectibles

Business Interests

Each item is assigned a value and, upon finalization of the divorce, each party will be awarded a share of the value.

Definition of non-marital property

Marrying someone doesn’t mean they immediately own half of all your property and assets. Items owned by individual spouses before they got married are characterized as non-marital property, and the original owner retains full ownership after divorce.

There are a few other circumstances in which an item may be considered non-marital, or separate, property. If one spouse receives an inheritance or gift designated specifically to them, that is considered a non-marital asset and the designee retains sole ownership.

If an item of property obtained by one spouse before the marriage — non-marital property — is converted into another form of property during the marriage, it remains non-marital property.

Example of non-marital property

For instance, if a woman owns a vehicle before getting married, then during the marriage she sells the car and uses the proceeds to buy a computer, the computer is considered non-marital property and she will retain ownership after divorce.

Additionally, property obtained by one spouse after a legal separation takes place is that individual’s non-marital property, even if the divorce has not yet been finalized.

Property that is both marital and non-marital

The co-mingling of two lives is nothing short of complicated, and judges must use certain calculations to determine which party walks away with what assets. It’s not always simple, especially when considering what each party has invested into their shared life.

For example, pensions are also often legally characterized as both marital and non-marital property in divorce proceedings. The owner of the pension retains sole ownership over its value at the time just before the marriage became legal. Once a couple were married, monies paid into the pension afterward make that value a marital asset.

Factors for marital property distribution and other considerations

When couples in some states get divorced, their marital assets are divided equally in half and each party gets a share. Many other states, including Illinois, instead follow an Equitable Distribution system. Equitable Distribution seeks to find the most fair division of assets between the two parties.

Another thing to remember about marital and non-marital monies: If an inheritance or financial gift is intermingled with the couple’s finances in joint accounts or investments, those monies become marital property. These issues are very complicated and you should address the same with your attorney.

Protecting your assets

Spouses can protect themselves from potential loss of non-marital assets by entering into a pre-nuptial or post-nuptial agreement. These agreements, settled before or during a marriage, lay out specifically how certain assets will be divided in case of divorce. Further, good record keeping is necessary to provide that assets have not been compromised.

For More Information

If you would like additional information about marital property or non-marital property, contact the Family Law Attorneys at Sterk Family Law to get started. Please contact our office at 815-600-8950 or contact us online to schedule a free consultation.

This article does not constitute individual legal advice and is to not to be construed as such. This article contains general information and constitutes legal advertising.